In its petition for rehearing, Inland argues that by allowing the railroad to amend its counterclaim to seek implied indemnity, this court is redrafting the railroad's pleadings and, in effect, acting as counsel for the railroad. Inland contends that this action is proscribed by the fundamental principle that a party cannot change his theories on appeal, citing Brannen v. La Salle National Bank (1959), 18 Ill. 2d 116, 163 N.E.2d 476, and Buck v. Alton Memorial Hospital (1980), 86 Ill. App. 3d 347, 407 N.E.2d 1067. While we are wholly in accord with this principle, we do not find the cited decisions applicable to the case before us. Brannen and Buck provide that where a party fails to raise an issue at the trial level, he is precluded from raising it for the first time on appeal. In its counterclaim, the railroad sought both indemnity and contribution from Inland. We concluded that while contractual indemnity was not viable under Indiana law where the contract did not contain a specific provision for indemnification, consistent with two prior decisions of this court (Schrier v. Indiana Harbor Beltt R.R. Co. (1980), 82 Ill. App. 3d 561, 402 N.E.2d 872; Schrier v. Indiana Harbor Belt R.R. Co. (1981), 102 Ill. App. 3d 855, 430 N.E.2d 204), an action for indemnity could be implied in law. The railroad did not attempt to either revamp its pleadings in this court or raise the issue of indemnity for the first time on appeal.

When confronted with a motion to dismiss, unless it clearly appears that no set of facts could be proved under the pleadings which would entitle the plaintiff to relief, the complaint must be sustained. (Ogle v. Fuiten (1984), 102 Ill. 2d 356, 466 N.E.2d 224; Sargent v. Illinois Institute of Technology (1979), 78 Ill. App. 3d 117, 397 N.E.2d 443.) Further, the statute relating to amendment of pleadings is to be liberally construed so as to allow cases to be decided on their merits rather than on procedural technicalities. (Anderson v. Rick's Restaurant & Cocktail Lounge (1977), 45 Ill. App. 3d 922, 360 N.E.2d 465.) While a reviewing court may affirm a judgment on any basis appearing in the record (Cutsinger v. Cullinan (1979), 72 Ill. App. 3d 572, 391 N.E.2d 177), "Justice would not be served by affirming a dismissal of a judgment against a party on the basis of a pleading defect which could be remedied by amendment" (Village of Pawnee v. Knostman (1983), 115 Ill. App. 3d 842, 854-55, 450 N.E.2d 1272, 1281).

We do not believe the interests of Justice would be served in the case at bar by affirming the trial court's dismissal of that portion of the railroad's counterclaim seeking indemnification against Inland where an amended pleading may be sought on remand pursuant to the decision of this court.

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